MSPB Clarifies Constructive Suspension Jurisdiction

The Merit Systems Protection Board vacated an administrative judge’s dismissal of a constructive suspension case after finding that the employee nonfrivolously alleged that she lacked a meaningful choice of whether to go to work against her doctor’s orders.

A program analyst with the Department of the Navy at Marine Corps Base in Quantico, Virginia filed a reasonable accommodation request citing an allergic reaction due to mold, carpet mites, and other allergens, which she stated resulted in migraine headaches, chest pains, coughing, and itching. The employee requested temporary telework or a move to another facility until the allergens were removed. The agency allowed the employee to telework while renovations were done on the building, after which she was directed to return to duty. After returning to duty, the employee notified the agency she had once again tested positive for mold and had suffered similar symptoms. She requested “an allergen-free” workplace, and while the agency considered the request, it placed the employee at an alternate work location. After receiving medical documentation from the employee, the agency made the alternate building the employee’s permanent workplace. But the employee alleged that the new building was also exposing her to mold, and subsequently suffered a heart attack while at work. The employee thereafter requested full-time telework as a reasonable accommodation, which was denied by the agency. And when the agency directed her to return to work, she did not do so in reliance on a doctor’s order to never return to the building.

The Agency hired a private company, and the company conducted an investigation of the allergens in the building and assessed the health risk as low. The agency then proposed the employee’s removal for failure to follow instructions and unauthorized absence, but canceled the removal when the employee suffered allergic symptoms during her oral reply inside the building. Instead, the agency placed the employee on a work schedule that included two days of telework per week, and three days of placement on Leave Without Pay status. The employee requested another reasonable accommodation, reassignment to a work environment free of mold, and provided a physician’s opinion that the employee could not work in the building. Then the employee filed an appeal with the Merit Systems Protection Board, alleging that she had been constructively suspended by her placement on LWOP every Monday, Wednesday, and Friday.

The appeal was dismissed for lack of jurisdiction, and the administrative judge found that the employee failed to establish that it was the agency’s actions that deprived the employee of the choice of whether to come to work since the agency made a good faith effort to provide the employee with a mold-free workplace. The employee petitioned the full Board for review.

As the Board noted, “all constructive suspension claims are premised on the proposition that an absence that appears to be voluntary actually is not.” According to the Board, in order to show that an absence is involuntary, the employee must show “she lacked a meaningful choice in the matter” and “it was the agency’s wrongful actions that deprived her of that choice.”

The Board explained that the administrative judge held the employee to a higher burden of proof than is required at the jurisdictional stage, and that the employee, through her claims, made a “nonfrivolous allegation” that she was constructively suspended. The Board observed that the parties “disagree as to whether the medical evidence the [employee] submitted in support of her request for accommodations was sufficient. Whether the agency was justified in continuing to demand additional documentation, and whether the accommodations the agency offered were, in fact, reasonable.” But the Board found that the employee’s allegations, if true, could establish that she lacked a meaningful choice in whether to come to work, and that the agency’s improper actions were the reason for that deprivation of choice. On remand, the Board stated, the employee “must prove by preponderant evidence the matters that she has nonfrivolously alleged. If she does so, she will have established the Board’s jurisdiction.”

For the above stated reasons, the Merit Systems Protection Board vacated the administrative judge’s decision, granted the employee’s petition for review, and remanded the case back to the administrative judge for further adjudication.